Equality Throughout a Nation: The Equal Rights Amendment is the Key to ...

[Pages:35]Equality Throughout a Nation: The Equal Rights Amendment is the Key to Protect All Citizens Nicolas Raffinengo

Dan O'Hanlon Essay Competition, 2022

Abstract: The Equal Rights Amendment (ERA). A policy that was drafted over 50 years ago with

the intention to provide a constitutional guarantee that all current and future laws shall not infringe on the rights of citizens on account of sex. Recently, the ? of states' threshold of ratification on ERA was met. Despite this support, the ERA has not been made the 28th amendment of these United States. While the ERA has not been made the 28th amendment, the concept that these United States. This failure does not mean that the United State should not continue to strive to be a more perfect union. This essay will examine not only why the country needs to secure the rights of cis women, but of all women and LGBTQ+ folk who would be protected under the ERA's definition of protection on the basis of sex. In doing so, it will review the history of the ERA and why it was proposed, analyze why protections are needed for both cis women and LGBTQ+ people, and speculate of about what could occur if the ERA were made the 28th amendment based on legal precedents and the current political climate.

TABLE OF CONTENTS: Section I: Understanding the Need for the Equal Rights Amendment..............................1

A: The Historical Need for Amendments Guaranteeing Protection..........................................1 B: Current Civil Rights Issues Pertaining to Cis Women...................................................... 3

Section II: Broadening the Scope of the ERA......................................................... 5

A: Transgender and LGBTQ+ Citizens Left Unprotected..................................................... 5 B: Status Quo of Discrimination to "Protect" Citizens......................................................... 7

i. Trans-Athlete Bans....................................................................................... 7 ii. Bathroom Checks........................................................................................ 9 iii. Imprisonment............................................................................................ 10 iv. Adoption................................................................................................... 11 C: Health Care Access for LGBTQ+ Citizens................................................................... 12

Section III: Clarification to Prevent Discrimination................................................ 15

A: Solidify Positive Supreme Court and Past Legal Precedent............................................. 15 B: ERA and Equality Act Working Together................................................................... 16

Conclusion.................................................................................................. 19 Acknowledgements........................................................................................ 20 Citations.................................................................................................... 21

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Section I: Understanding the Need for the Equal Rights Amendment

A: The Historical Need for Amendments Guaranteeing Protection From the founding of this nation to today, very little has been done to ensure that women

in the United States are equal in the Constitution. It wasn't until 1920, a little over a century ago, that women finally got the right to vote. This was after over 70 years of women formally coming together and fighting for the right to vote in Seneca Falls in 1848, though even then they didn't advocate for suffrage for all women but excluded Black women. Women have been fighting for a long time, but since our founding only one Constitutional amendment has directly addressed women, the 19th amendment. Historically, the question of women's rights has fallen upon legislators and United States Supreme Court (SCOTUS) justices, predominantly cis white males. Even with women voting, this has systematically hindered their overall protections and rights. This continues to occur because the male leaders in legislative and executive positions attempt to "protect" women with legislation that ultimately gives men more control. This continued heavily until the 1960s and 1970s when the Supreme Court began to change and began being the check for legislators passing restrictive and abusive laws. The first major example was Griswold v. Connecticut which allowed the use of contraceptives. This was changed with the decisions Eisenstadt v. Baird (allowing couples to purchase contraceptives freely), and Roe v. Wade (allowing women's right to an abortion). The American Civil Liberties Union (ACLU) categorized over 140 SCOTUS decisions between 1964-2022 that affected the rights of women for the better or worse. Shifting Supreme Court composition and the resulting shifts in how the Constitution is interpreted means that the rights and protections of women have historically rested on a seesaw. This lack of consistency can lead to legal precedents that hurt the rights of

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women. So, when historically the Court is inconsistent and lawmakers often vote against the rights of women, the ERA became a consideration of congress. While the language of the original ERA, stated "Men and women shall have equal rights" the version passed in 1972 read "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.". Only after almost 50 years after the ERA was passed did it finally get the ? majority of states' ratification. Even after this threshold was met, it still wasn't added to the Constitution, because the Office of Legal Counsel for the U.S. Justice Department stated that this amendment was invalid because it missed the 10-year deadline for ratification established by Congress (an initial seven-year deadline was later extended by three years). The legitimacy of this deadline has been argued by constitutional lawyers and scholars, as it has never been a part of Section V of the constitution, and thus not a legitimate rule for the constitutional amendment process, meaning that this decision fell into the hands of the Office of Legal Counsel, who is composed of members picked by the executive branch. The ERA amendment reached the threshold to be made an amendment during the Trump administration, which during its tenure blocked many legal protections for women and thus the Office of Legal Counsel made of Trump appointees denied the amendment In 2022, the Office of Legal Counsel announced alongside President Biden that it supports the Equal Rights Amendment, and thus the question once again falls on Congress to pass a bill that both codifies the protections proposed by the ERA and pass a bill to extend the deadline for the ERA, rather than restarting the process of states ratifying the ERA. 1 This would allow in the short term for citizens to be protected by law while the bill regarding the extension of the deadline is passed through Congress.

1 Statement from President Biden on the Equal Rights Amendment. The White House

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B: Current Civil Rights Issues Pertaining to Cis Women In the last half of a decade, large issues pertaining to the rights of women, especially cis

women, have come to the fore. The National Organization of Women finds the following topics to be of concern: Reproductive Rights (Freedom to Choose Abortion and Contraceptives), Economic Justice (Equality Through Pay and Opportunity), Ending Violence Against Women (Domestic Violence; Sexual Assault and Harassment), LGBTQ+ Rights, and Racial Justice.2 What it deems most important in addressing these issues is passing the Equal Rights Amendment deadline extension thus codifying protection of equal rights, on which other protections can be built. This year alone, because of the Supreme Court making a rapid ideological change, a woman's right to choose whether or not to bear a child has been revoked. With the overturning of Roe v. Wade, a sharp alarm was sounded, warning that many other protections established by the Supreme Court over decades may come crashing down. This is why, in this new era of a Supreme Court that is interpreting the Constitution in a way that strips away the rights of women, the duty of the current administration and lawmakers is to ensure that the ERAis added to the Constitution, which would then change the legal landscape of the courts and shape future Supreme Court decisions. But why should the current administration and lawmakers pass the ERA? Because it is a political action that most Americans want to be enacted. In January of 2020, 74% of Americans favored the ERA.3 In the Summer of 2020 there was an increase of 4% in favor of the ERA.4 Such widespread support should encourage politicians to push for the ERA.

2 Core issues - national organization for women. National Organization for Women 3 Women making history: Polls on the Equal Rights Amendment. American Enterprise Institute 4 Most Americans support gender equality, even if they don't identify as feminists. Pew Research Center

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Previously, pushback stemmed from the Stop ERA movement, arguing that it would "take away the privileges" of women.5 These including benefits from Social Security, gendered bathrooms, and being exempt from the military draft. While some of the arguments for Social Security and the military draft could be valid, many of the arguments made by STOP ERA and Phyllis Schalfly have lost their merit as society progressed. These arguments haven't aged with time; as a Heritage Foundation article explained that writes, passing the ERA would lead to "government-financed abortion, state nurseries, same-sex marriage, and the elimination of female stereotypes in school textbooks."6 With many of these concerns being addressed in legislation in 2022. Continuing to be resolved in many states, other states are going in the opposite direction, removing many rights that STOP ERA sought to keep in law decades ago., it is in no way guaranteed. Thus, passing the ERA can help avoid the backsliding that we have seen historically. Just because these rights are secured right now does not mean they will always be concrete. For examples, the recent Supreme Court decision in Dobbs v Jackson Women's Health Organization removed the right to bodily autonomy from women, and the conservative court has now switched their crosshairs to address contraceptives and same sex or LGBTQ marriage. As Justice Thomas wrote in the opinion that the Supreme Court should "correct the error" established in Griswold v. Connecticut (contraceptive access), Lawrence v. Texas (same sex sexual activity), and Obergefell v. Hodges (gay marriage)7. The passing of the ERA, at the very least would help prevents the backsliding of Supreme Court decisions, but at its greatest potential can be a stone to build a more perfect union.

5 Phyllis Schalfly's Stop Era Campaign Against Women's Equality. ThoughtCo 6 Ignore "mrs. America." here's the true story of Phyllis Schlafly. The Heritage Foundation 7 Dobbs v. Jackson Women's Health Organization. Supreme Court of the United States

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Section II: Broadening the Scope of the ERA

A: Transgender and LGBTQ+ Folk Left Unprotected In conversing with LGBTQ+ members of Marshall University, it has become increasingly clear that LGBTQ+ people feel concerned for their rights. The ERA could provide concrete legal protection for those in the LGBTQ+ community. In the first three months of 2022 alone, almost 238 pieces of anti-LGBTQ+ legislation were filed. This wasn't just in the conservative states, but in all fifty states, which all had at least one antiLGBTQ+ legislation filed within their legislative branch.8 Of the 238 filed, sixteen were enacted within the first half of 2022.9 That's almost the same amount of anti-LGBTQ+ legislation filed for the entire year of 2021; but of the over 250 pieces of legislation filed in 2021, 15 were enacted the same year. These included four religious refusal laws, two anti-LGBTQ+ education bills, and seven anti-trans sports bans (one of the states being our state of West Virginia).10 State and local legislators who are pushing for antiLGBTQ+ legislation have increased their efforts, as the political landscape and talking points have switched to targeting culture war scapegoats rather than focusing on policies addressing the issues felt by many of their constituents. Looking at my home state of Florida, which recently passed the "Don't Say Gay" Bill, which was a massive blow to LGBTQ+ people across the state. The legislation bans teachers or schools from talking about anything regarding LGBTQ+ people out of fears of being sued, as well as making schools out LGBTQ+ students to their.11 This is a lack of care for LGBTQ+ students, because outing them could lead to increased harassment at school and abuse at home. It

8 Nearly 240 anti-LGBTQ bills filed in 2022 so far, most of them targeting trans people. NBCNews 9 Sixteen laws restricting the LGBTQ community passed in 2022. USAFacts 10 2021 officially becomes worst year in recent history for LGBTQ state legislative attacks as unprecedented number of states enact record-shattering number of Anti-LGBTQ measures into law. Human Rights Campaign 11 Florida's governor signs controversial law opponents dubbed 'don't say gay'. NPR.

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